Testimony :: Ms. Debra Murphy-ScheumannPresident of the Board of Directors - Joint Council on International Children’s Services

Mr. Chairman, Members of the Commission, thank you for providing me with an opportunity to share our experience and concern about the current situation in Romania.

I am pleased to be here today and hopeful that the Commission can take action and encourage reform in Romania’s child welfare system so that it is indeed, operating in the best interest of the children.

I am the mother or guardian of 10 children; have been a foster parent for more than 60 children; the founder and President of Special Additions, Inc.; the President of JCICS and the President of a Romanian Association that operates a children’s home in Romania. I have served on the JCICS Board of Directors since 2002 and this is my second year as President.

Today, I will touch on who JCICS is and what we believe; Romania’s legislation and Children’s Rights; violations of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the UN Convention on the Rights of the Child; the influence of the European Union; Romania today and lastly, our recommendations.

JCICS Overview

Joint Council on International Children's Services (JCICS) is one of the oldest and largest associations of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world. Our mission is to advocate on behalf of children in need of permanency and promote ethical practices in intercountry adoption.

Through our involvement in international child welfare since 1976, JCICS has developed an appreciation of the complexity related to the processes and approaches that serve to protect children while expeditiously meeting their need of finding permanency, safety and love. Collectively our members, over 200 organizations, serve approximately 75% of all international adoptions in the United States. JCICS believes that all children – regardless of race, ethnicity, gender, medical limitations or other conditions – deserve a permanent, safe and loving home. When children cannot be safely cared for in their birth families, or in permanent adoptive homes within their country of birth, we believe that ethical intercountry adoption provides the most positive option for children.

Romanian Legislation

Joint Council shares the commitment of the Romanian government to strive for best practices in child adoption and welfare law and we support Romania’s effort to promote national adoption in an effort to care for its children. We also recognize the intense political pressure within Romania and their desire for European Union accession.

As you are aware, on January 1, 2005 Romania implemented new legislation eliminating international adoption as an option for children in need of permanent families, except for cases of adoption by biological grandparents.

While the new legislation seeks to promote national adoption, which is an important piece of child welfare and one that JCICS supports, only 3,513 children were adopted by Romanians over a 2 year span from October 2001 to October 2003. In the spring of 2004, there were an estimated 37,000 children still institutionalized, as reported by Gabriela Coman, head of the Child Protection and Adoption Authority. However, this figure does not include infants born in maternity centers or abandoned at hospitals who are counted under the Ministry of Health, or foster care. JCICS’s foremost concern is for the development and care of the tens of thousands of children who remain in institutions or inadequately funded foster case situations.

Many adoption cases were legally registered with the Romanian Government prior to implementation of the new law and are now considered “pending or pipeline cases”. There are approximately 211 such cases in the United States. In March 2005 President Basescu agreed to process the pipeline cases by April 2005 ensuring permanency for these children. To date this has not occurred.

Children’s Rights

One of the most basic human rights is the right to have a family. This is something that most of us take for granted. Sadly, many children in Romania have become political pawns in government politics and are being denied the right to permanency.

According to the United Nation’s Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, the best interest of the child is a permanent family.

The Hague Convention reads:

“The States signatory to the present Convention,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,

Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.”

The Convention on the Rights of the Child echoes The Hague Convention’s tenet that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

Article 21 of CRC:

“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;”

In a later press release, issued on January 26, 2004, UNICEF clarified their position on intercountry adoption vs. institutional care and stated that:

“For children who cannot be raised by their own families, an appropriate alternative family environment should be sought in preference to institutional care, which should be used only as a last resort and as a temporary measure. Inter-country adoption is one of a range of care options which may be open to children, and for individual children who cannot be placed in a permanent family setting in their countries of origin, it may indeed be the best solution.”

The Universal Declaration of Human Rights which has been adopted by the EU also states:

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

We would like to stress that foster care is not a permanent solution. The 150 year history of foster care in the United States demonstrates the faults and shortcomings of a foster care system. The Pew Commission on Children in Foster Care in 2004 revealed the poor outcomes for emancipated youth in the United States after they leave foster care. Focus groups with 100 youth in Nevada found that 41 percent did not have enough money to cover basic living expenses, 24 percent had supported themselves at some time by dealing drugs, 50 percent left foster care without a high school degree, and 41 percent had been in jail.[1] The Adoption and Safe Families Act of 1997 establishes unequivocally that our national goals for children in the child welfare system are safety, permanency, and well-being. It addresses the inadequacy of foster care to provide a permanent family for children in need, and it directs that permanency planning efforts must begin as soon as a child enters foster care and must be expedited by the provision of services to families. JCICS urges all countries to use foster care only as a short-term solution for children awaiting a permanent family.

The United States recognizes the urgent need of permanency for children. While the US is a receiving country, we are also a sending nation with families in Canada, UK, and Australia among others, adopting US children through the foster care system or private adoption.

JCICS is concerned for children who do not find permanency. Their options are severely limited as they age out of institutional settings. They leave without adequate education and training and their options are severely restricted. They are prone to be victims of abuse and violence and/or perpetuate violent acts against individuals or society. Many of them will runaway to live on the streets or in the sewers and become involved in crime, drugs and prostitution.

Violation of Conventions

It is our concern that the newly implemented legislation does not provide maximum protection of a child’s rights nor contains proactive measures to achieve permanent placement within a family structure as echoed in the Hague and CRC conventions.

Romania is party to both conventions. Romania signed the Convention on the Rights of the Child on October 28, 1990. Romania ratified The Hague Convention on December 28, 1994 and it entered into force on May 1, 1995.

Article 3 (1) of the Convention of the Rights of the Child states that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The Hague Convention states a similar priority for the best interest of children.

JCICS, along with other child welfare advocates, are concerned that the current legislation in Romania, essentially eliminating the possibility of intercountry adoption, is in breach of these convention principles.

Influence of the European Union

Child protection has been one of Romania’s priorities for their governing program in connection with EU integration. Sadly, the undocumented claims made by the EP’s former rapporteur to Romania appear to have influenced foreign media coverage and current legislation resulting in reform that contradicts the basic tenets of the Hague Convention by compromising a child’s right to a permanent family through intercountry adoption.

The cessation of international adoptions was largely a result of EU pressure to improve their [Romania] “human rights record”. In 2001, the former EU Rapporteur to Romania issued a report which threatened Romania’s opportunity to advance into the European Union. It repeated claims that children were being sold for their organs and prostitution in amounts up to $50,000. These accusations have continued throughout the years with a recent article addressing the plight of internationally adopted children occurring in July 2004, by former Rapporteur Emma Nicholson: “Supporters of this trade claim it provides loving couples with a child whose life would otherwise be miserable. While this can be true in some cases, the reality for many Romanian children is far less positive. Children exported abroad - often against their will - are often subjected to pedophilia, child prostitution or domestic servitude. Since 1989 this trade has grown endemically and propped up the corruption which has seeped into many aspects of Romanian public life.”[2] Despite repeated requests to the EU and Romania for proof of these accusations, they failed to provide documentation supporting these allegations.

Romania needs to institute reforms to combat corruption. This should include stringent penalties and enforcement of laws – not limiting laws to such a degree as to prevent intercountry adoption as an option for children. While Romania is striving for economic and social stability we recommend short and long term planning with benchmarks for goals at 5, 10, 15 and 20 years. We are concerned that implementing programs quickly without the proper infrastructure have created significant problems and is not in the best interest of the children.

Romania Today

Romania has made tremendous strides since the fall of communism and has taken some positive steps towards child welfare reform. JCICS supports many of the efforts and encourages the country to continue to protect the rights of children. However, we are troubled by the current situation in Romania and the neglect of its most helpless citizens.

UNICEF Study

UNICEF conducted a three month transversal study on the abandonment of children in Romania in 2003 to 2004. This study confirmed the desperate circumstances of abandoned children of Romania. It states: “The coordinates of child abandonment in 2003 and 2004 were the same as those 10, 20 or 30 years ago. Despite continued efforts on behalf of the government and non-governmental groups, the number of children coming into care continues.” Of the children abandoned in Romania, the majority of the children are Roma at 56.7%, with Romanian being second at 41%, Hungarian at 1.7% and finally Turkish-Tartar at 0.6%. The study showed that the research indicated [in the reference years of the study] that approximately 4,000 newborns were abandoned each year in maternity wards and another 5,000 abandoned annually to pediatric wards and hospitals. The study also indicated an existing racial discrimination among society and professional child welfare and medical workers to the Roma population.

Tens of Thousands of Orphans Remain

Domestic adoptions have not increased to keep up with the needs of abandoned children in Romania. Limiting a child’s right to a family through only domestic adoption or intercountry adoption by second-degree relatives, denies the right to a permanent family for thousands of children. We believe that this short-sighted approach has a negative impact on the future of these children and creates for them long-term sentences of hopelessness and despair.

Inaccurate Statistical Reporting System

Many children in the welfare system in Romania are currently visited by parents or family members. While JCICS supports the protection of parental rights and exploration of reunification in these cases, there are many other children for whom this is not the case.

Historically, Romania has counted children as “adoptable” only when their parental rights are terminated. However, to achieve this designation, children must receive documented relinquishment from their parents or an abandonment hearing in the courts. The latter often does not occur due to the significant lack of funding from the government. As a result children may never have contact with their parents but are unable to be adopted or statistically recorded as “adoptable”.

Inadequate Foster Care System

We are concerned about reports of thousands of children hastily placed into an inadequate foster care system in Romania. Foster parents have not been trained; social workers lack the resources to make the required visits; and financial gains are a motivation for many foster care parents

Lack of Family Reunification Plans

A lack of family reunification plans and processes are evident as birthmothers attempting to relinquish their babies are forced to take their child home without additional support or assistance or when abandoned infants are dropped off and left with distant relatives with no follow-up supervision.

Basic Freedoms

Individuals involved in child welfare reform in Romania, as well as media reporters, are reluctant to come forward to address their concerns on the current situation due to negative reprisals from the Romanian government. Until the citizens of Romania can feel secure to address the reality of the current situation in Romania, making positive end-roads in child welfare reform will be extremely challenging.

Recommendations

JCICS recognizes the complexity of adoption reform and the difficulties that exist in developing a system that both conforms to international standards and balances the needs of children waiting for families. However, the situation has become so politically complex that children continue to suffer until a law that accounts for the rights and best interests of the children is supported by the EU and approved by the Romanian government.

It is our hope that the European Union will embrace the international community and join together to ensure that a child’s health and happiness is what ultimately governs our actions. Methods for eradicating corruption in adoption need to be implemented and full functioning child welfare infrastructures need to be established in all countries. Reintegration of the child with their family should always be the primary goal. If that is not a possibility, then national adoption along with intercountry adoption should be considered as options. The foremost objective is permanency for the child.

While we understand that the Helsinki Commission cannot insert itself into Romania’s internal challenges, JCICS requests that the following action items are considered:

Ø Ensure that Romania’s adoption legislation adheres to the tenets and principles outlined in the Hague Convention on Protection of Children and Co-Operation In Respect of Intercountry Adoption.

Ø Emphasize through diplomatic communication with the European Union and other EU and EP delegates that international adoption is the best option for children who cannot be permanently placed within their country of birth.

Ø With regards to the pending “pipeline cases” we recommend:

o Creation and passing of an exception to the law to allow processing of the pipeline cases under Romania’s emergency ordinance.

o Expeditiously processing the pipeline cases using clear criteria.

Closing

JCICS believes we all have a responsibility to let these children’s voices be heard. It is our duty to insure that these children are given a life of safety, permanency, and well-being.

Thank you very much for allowing me to appear before your Committee today. I would be happy to answer any questions you may have.Appendix

JCICS letters

a) April 25, 2005 to President Basescu (including recommendations for processing pipeline cases

b) July 7, 2004 to The Guardian Editor in Chief Emily Bell

c) February 23, 2004 to US Ambassador Michael Guest

d) February 2, 2004 to Prime Minister Nastase

Statistics and Information on Romania

United Nation’s Universal Declaration of Human Rights

April 25, 2005

The Honorable President Traian Basescu

President of Romania

1 Victoriei Square

District 1

Bucuresti, Romania

Dear President Basescu:

It is with gratitude that we thank you for taking the time to meet with the families and organizations at Ambassador Ducaru’s residence in Washington DC on March 10, 2005 in regard to the pipeline cases.

We are writing you today to address three points:

JCICS White Paper

Processing of pending cases

Current situation in Romania

As you are aware, Joint Council on International Children's Services (JCICS) is one of the oldest and largest membership associations of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world. JCICS does not place children for adoption or provide adoption services, but rather advocates on behalf of children in need of permanent families and promotes ethical practices in intercountry adoption.

JCICS White Paper. JCICS shares the commitment of the Romanian government to strive for best practices in child adoption and welfare law and supports Romania’s effort to promote national adoption in an effort to care for its children. We would like to commend the National Authority for the Protection of Children's Rights (NAPDC) for their request for input from NGOs regarding Romania’s child welfare legislation. Joint Council has prepared a “White Paper” defining our position on permanency for children around the world (see enclosure). We will be sending a copy of it to NAPDC as well.

Processing of pending cases. JCICS presented to the US State Department recommended criteria for processing the pipeline cases. The ultimate goal for all involved is to have the system be as transparent as possible. Enclosed are our recommendations.

Current situation in Romania. It has been brought to our attention that some children currently considered part of the “pipeline” cases awaiting adoption by matched U.S. families have been adopted nationally. JCICS applauds the efforts to keep children with birth families and extended families. However, many of these abandoned children have been residing in institutions or foster care for at least three to twelve years. This naturally raises questions and concerns as to why these children’s families are just now coming forward to adopt them. We sincerely hope that these placements have been done at the request of the extended family and that they were not the result of external pressures or financial incentives. We know you share our strong belief that it is in the best interest of any child to be adopted by a family solely on the basis of a dedicated commitment to that child’s well being. We would like to take this opportunity to emphasize the need for transparency and ethical practices in child placement – both domestically and internationally – and that a child’s best interest should be of foremost priority.

Joint Council is confident that under your leadership the care of these children, and all children in Romania, will proceed in an ethical and transparent manner. We understand the political pressure that Romania is facing with regards to the pending EU Accession, but believe that a child’s right to a permanent family should prevail over political pressure.

Thank you again for your time and consideration of our requests.

Sincerely,

Meghan Hendy Deb Murphy-Scheumann Debbie Price

Executive Director President Romania Caucus Chair

Specific Recommendations for Processing of Pipeline Cases

The establishment of a transparent procedure to process pipeline cases is essential to the protection of children’s rights in Romania. It is critical that a system be created that will protect the rights of the child, prevent corruption, be clear in terms of legislation, and be able to be accomplished within a defined timeframe.

There are several areas of concern to be addressed in completing the “pipeline” cases:

Ø Creation of a definition of “pipeline cases” to determine those children who are eligible for completed adoptions;

Ø Establishment of a transparent procedure to finalize the “pipeline cases”;

Ø Creation and passing of an “exception” to the law to be implemented by January 1, 2005 that will provide for the processing of “pipeline cases” that were initiated under Romania’s emergency ordinance;

Ø Determination of the department within the Romanian government responsible for processing the cases;

Ø Identification of those pipeline cases and assessment of the prospective adoptive parents desire to proceed with their adoption.

We highlight and offer suggestions on two of the above areas of concern: Definitions and Procedures

Definitions

To insure that all cases that were in process prior to the suspension of the emergency ordinance are finalized, a definition and criteria needs to be established that will be consistent for all children.

It is recommended that the definition include at least one of the following components:

Cases that were:

Ø assigned a file number by the Romanian Adoption Committee for processing

Ø have a letter approving the family for adoption from the Central Authority or foreign embassy of the adoptive parents domicile prior to March 20, 2004;

Ø Approved by the local direction as an identified family.

Procedures

We suggest that all pipeline cases be processed within six months of the passing of the new procedure.

The Romanian Adoption Committee should publish monthly reports to detail how many adoptions have been completed in all regions. These reports should be made public via the internet or though written request to Romanian Embassy posts.

To keep the process as transparent as possible, files should be processed based on established criteria that must be applied to all cases. Criteria can be established as follows:

Date that the file was registered at the RAC;

Documented medical or mental special needs of the child;

Age of the Child;

Date that the file was registered with the foreign embassy;

Date that the Direction approved the child;

Each criterion could be assigned a weighted measure that would be useful in identifying which cases should be given priority.

For example:

File registered at the RAC in June 03 Measure (1-5) Score: 3

Child has detailed special needs Measure (1-5) Score: 5

Child is 2 years of Age Measure (1-5) Score: 4

File has not be registered with Embassy Measure (1-5) Score: 1

Direction approved child in January 04 Measure (1-5) Score: 3

Total Score: 16 out of 25 or 64%

Categories for purpose of processing

Category 1 Scores 75 – 100% (processed first)

Category 2 Scores 50 – 74%

Category 3 Scores 25 – 49%

Category 4 Scores 0 – 24%

Thank you for this opportunity to provide suggestions for the processing of pending cases in Romania. We look forward to a swift resolution to this issue and for these children to be united with permanent families.

July 7, 2004

Ms. Emily Bell

Editor in Chief

The Guardian Unlimited

3-7 Ray Street London EC1R 3DR United Kingdom

Dear Ms. Bell:

In her article, Red Light on Human Traffic, July 1, Baroness Emma Nicholson makes a number of serious undocumented accusations regarding intercountry adoption while equating intercountry adoption to human exportation and trafficking violations. As the Executive Director of Joint Council on International Children’s Services, a national non-profit organization in the United States dedicated to advocating on behalf of children in need of permanent families and promoting ethical standards in intercountry adoption, I challenge the Baroness’ conclusions and object to her continued campaign against international adoption.

The recent court case referenced by Nicholson, Pini and Bertani & Manera and Atripaldi v. Romania heard by the European Court of Human Rights (ECHR), is a singular court case and is not, as Nicholson proclaims, a “landmark judgment on inter-country adoption, which has major ramifications … in 45 countries across Europe”. In this particular case, the court found that the two girls in question, “preferred to remain in the socio-family environment in which they had been raised at the CEPSB”, a private institution approved by the Brasov Child Protection Department. The court also found that “the sole cause of the failure to execute the adoption orders had been the actions of the CEPSB staff and its founder members,” including a kidnapping attempt. While the CEPSB may be well managed, it is still an institution and should not be considered a long-term solution for the children in its care.

The Baroness also writes “the supply of Romanian children for international adoption is drying up”. Unfortunately, the facts show the Baroness’ claim is incorrect. According to the Romanian National Authority for Child Protection and Adoption there are 84,382 children in the Romanian system who are in need homes. Over 26,000 children are living in institutions and are estimated to be three years of age or older. It is well documented that children who do not find permanent families, especially those institutionalized over the age of two, are at greater risk for attachment disorders, speech delays and other developmental challenges.

Joint Council believes that the child’s best interest is of the utmost importance and should never be compromised. When children cannot be cared for by their birth families or in permanent adoptive homes within their country of birth, we believe that intercountry adoption provides the most positive option for children. Both UNICEF (the United Nations Children Fund), in their January 2004 statement on intercountry adoption and the Hague Convention on Protection of Children and Co-Operation in Respect of International Adoption support this assertion.

Unfortunately, Baroness Nicholson routinely equates international adoption with serious crimes of human exploitation without providing solid evidence to support her claims. These sensationalist tactics ignore the fact that many thousands of children are successfully adopted into loving families each year. Even more importantly, in lieu of international adoption, the Baroness provides no healthy solutions to the on-going plight of the world’s orphaned children. She believes that institutionalizing children in their own country is preferable to finding a permanent, committed family wherever they might be. We cannot be more strongly opposed to her position.

Joint Council firmly believes that cases of child trafficking should be quickly condemned and prosecuted to the full extent of the law. Many countries, which recognize the tremendous contributions that international adoption have made on the lives of thousands of abandoned, neglected children, have found ways to keep adoptions open while creating stringent systems of oversight that minimize corruption. From experience, they have come to understand that trying to prevent corruption by banning all intercountry adoptions simply does not work. In fact, banning international adoption does nothing to give pause to unscrupulous individuals. What it does do is deny children who are in desperate need from finding permanent families.

As citizens of a larger international community, we have an obligation to work together to ensure that a child’s health and happiness ultimately governs our actions. Eradicating corruption in adoption should be an international priority. Fully functioning child welfare infrastructures must be established in all countries, and national adoption should always be promoted as preferable to intercountry adoption. At the same time, our ultimate goal should be to find loving, permanent homes for our world’s needy children, wherever they may be found.

Sincerely,

Antonia Forkin Edwardson

Executive Director

Joint Council on International Children’s Services

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Joint Council on International Children’s Services (JCICS) is the oldest and largest membership association of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world. Joint Council believes that all children deserve permanent, loving homes. When children cannot be cared for in their birth families, or in permanent adoptive homes within their country of birth, we believe that intercountry adoption provides the most positive option for children. For more information visit www.jcics.org.

February 23, 2004

The Honorable Michael Guest, the Ambassador of the United States

The American Embassy

Filipescu 26

Bucharest, Romania

Dear Mr. Ambassador:

Joint Council on International Children's Services (JCICS) is one of the oldest and largest membership associations of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world. JCICS does not place children for adoption or provide adoption services, but rather provides continued education for adoption practitioners and works to promote higher ethical standards in adoption.

Joint Council believes that all children deserve permanent, loving homes. When children cannot be cared for in their birth families, or in permanent adoptive homes within their country of birth, we believe that intercountry adoption provides the most positive option for children.

I am writing to you on behalf of our member agencies to thank you for your continued commitment to international adoption and attention to the recent events in Romania that have resulted in the cancellation of the Emergency Ordinance.

JCICS is pleased that the U.S. Department of State is working diligently to ensure that the 36 cases with court decrees be finalized. However, we strongly believe that all cases filed while the Emergency Ordinance was law and have a registration number from the National Authority for Child Protection and Adoption (NACPA) should also be processed.

After a dossier is completed with the 171-H verification letter from the U.S. Embassy in Bucharest, it is filed with the National Authority for Child Protection and Adoption and is assigned a registration number. At this point, the case is officially accepted by the Romanian Government. Joint Council believes that the registration number presents a very easy point of reference from which the U.S. Embassy in Romania can advocate for the cases that had been filed prior to the cancellation of the Emergency Ordinance.

We need to emphasize the urgency of this situation as many children and families have already waited over one year to be united through adoption. If these families are made to wait until a new adoption law is implemented, they could be faced with waiting for an additional year or worse, losing their referral. Your assistance in making sure that the processing of cases with a NACPA registration number becomes a priority with the Embassy will be greatly appreciated.

Again, thank you for your continued commitment to this issue.

Sincerely,

Antonia F. Edwardson

Executive Director

February 2, 2004

The Honorable Adrian Nastase

Prime Minister of Romania

Piata Victoriei, Sector 1

Bucharest, Romania

Dear Prime Minister Nastase:

Joint Council on International Children's Services (JCICS) is one of the oldest and largest membership associations of licensed, non-profit international adoption agencies, child advocacy groups, parent support groups and medical clinics in the world. JCICS does not place children for adoption or provide adoption services, but rather provides continued education for adoption practitioners and works to promote higher ethical standards in adoption.

Joint Council believes that all children deserve permanent, loving homes. When children cannot be cared for in their birth families, or in permanent adoptive homes within their country of birth, we believe that intercountry adoption provides the most positive option for children.

In May 2003, JCICS submitted comments to your office regarding the draft law which strives to revise Romania’s adoption procedures. We have recently learned that the Romanian government is about to implement the new law. As such, we would like to take this opportunity to comment on aspects of the draft law that we believe could compromise a child’s right to achieve placement within a permanent family structure.

As noted in the preamble to the Hague Convention, States which are signatory to the Convention recognize that the child “should grow up in a family environment, in an atmosphere of happiness, love and understanding” and that “intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin”. We believe that several provisions contained within the draft law contradict the basic tenets of the Hague Convention, thus resulting in an inability to fulfill Article 56, which provides for the issuance of a certificate stating that the “adoption is in accordance with the standards stipulated under the Hague Convention.”

First, while acknowledging a child’s right to a family, Article 2 of the proposed law includes language which suggests that a substitute family would be preferential to a foreign adoptive family. Additionally, Article 39 (2) states that international adoption may be allowed only if “the care of the child cannot be appropriately ensured within the special child protection services, be they public or private”. The combination of this and similar language is concerning. If children are allowed to be cared for by a “substitute” family or other public or private services before international adoption can be considered, the reality is that the child will not have the greatest opportunity for permanency. This type of wording provides for the practice of institutional care to be made a priority over a permanent family through international adoption; a situation that is in direct conflict with the tenets of the Hague Convention and the UN Convention on the Rights of the Child.

Second, Article 46 (1) prohibits international adoption as an option for children who are under the age of two. It is difficult to understand what the purpose of this prohibition would be other than to assure that efforts have been made to preserve the original family and/or pursue a placement with a Romanian family. The draft law does stipulate that such measures are taken within a defined period of time. Therefore, if no permanent family is found to care for the child in Romania, then there is no benefit to force children to wait until the age of two to be adopted internationally. It has been well documented that children who do not find permanent families are at greater risk for attachment disorders, speech delays, and other developmental challenges. By postponing the option of international adoption for two years, the opportunity for a child to overcome these risks is decreased dramatically.

JCICS shares the commitment of the government of Romania to strive for best practices in child adoption and welfare laws. We recognize the intense political pressure from both within Romania and foreign entities concerned with corruption issues. However, it is important that the new law be one that provides maximum protection of a child’s rights and contains proactive measures to achieve permanent placement within a family structure as echoed in both the Hague Convention and the UN Convention on the Rights of the Child. Until the provisions outlining substitute families, care by public or private services and the age restriction are changed to allow for international adoption as a valuable and timely option, we believe that the draft law fails to provide for the best interests of children.

While Joint Council looks forward to implementation of a new law and the end of the moratorium on Romanian international adoptions, we hope that time will be allotted for review and revisions before finalization.

Respectfully Submitted,

Antonia Forkin Edwardson

Executive Director

Joint Council on International Children’s Services

Statistics and Information on Romania

In 15 years, over 8,000 orphaned Romanian children have found permanent, loving families in the United States.

Adoptions peaked in 1991 with over 2,500 children adopted due to media publicity about the thousands of children living in inadequately staffed and funded orphanages after the fall of communism in Romania.

The mean average over the 15 years noted is 548 adoptions annually.

In the spring of 2004, it was estimated that 37,000 Romanian children were still institutionalized, as reported by Gabriela Coman.

1991 – Adoptions by U.S. citizens peak due to media publicity about the thousands of children living in inadequately staffed and funded orphanages.

December 2000 – Prime Minister Nastase takes office; a de facto suspension of international adoptions occurs.

June 21, 2001 – The Romanian Adoption Committee (RAC) announces a one-year moratorium on inter-country adoption due to concerns about corruption.

October 8, 2001 – The Romanian Government issues an ordinance (OUG No. 121) stating that child protection is one of the priorities of the governing program for 2001-2004, in connection with Romania's integration with the European Union.

December 6, 2001 – The Romanian Government issues an Emergency Ordinance (amending OUG No. 121) which allows applications for international adoption to be processed if the case falls under extraordinary circumstances (i.e. special needs or older children) and the adoption is in the child's best interest.

December 14, 2002 – The new legislative package is submitted for public debate.

Early 2003 – The legislative package is sent to the European Commission to receive the point of view from the European body. The experts of the European Commission submit their observations. The legislative package on child protection consists of Draft law on protection and promotion of the rights of the child; Draft law on adoption; Draft law on the structure, operation and funding of the National Authority for the Protection of the Rights of the Child; and a Draft law on the structure, operation and funding of the Romanian Office for Adoptions.

May 5, 2003 – JCICS participates in the public debate on a version of the Legislative Package on Child Protection and submits comments. JCICS’ concerns include the prohibition of adoption of children under the age of two, a prolonged parental consent period, prolonged travel requirements, etc.[4]

December 2003 – Romania faces considerable pressure following reports of 105 children being approved for adoption during the moratorium by Italian families. This spurns negative press against international adoption and some individual’s state that Romania's 2007 entry into the EU may be in jeopardy.

February 5, 2004 – The Emergency Ordinance is repealed. All international adoptions are suspended until the new adoption law takes effect. During the moratorium, 1,115 international adoptions were processed under the exceptional procedure.[5]

March 10, 2004 – The European Parliament approves a pre-accession report on Romania presented by Baroness Nicholson. In the resolution, Parliament states “Romania will have to deal with the high level of corruption, ensure the independence and proper functioning of the judiciary, guarantee freedom of the media and stop ill-treatment at police stations… [MEPs] reminded Romania that Parliament has to decide whether to approve Romania's accession.” [6]

March 11, 2004 – The new adoption law is approved by the Romanian Cabinet and is sent to the Parliament. As reported by Gabriela Coman, the new adoption law would cease all intercountry adoptions with the only exception being when the child has relatives up to the second-degree in the adoptive family abroad. JCICS understands that second-degree relatives are defined as grandparents or siblings.

June 21, 2004 - Romanian President Iliescu signed into law the new adoption legislation.

September 24, 2004 – JCICS met with officials from the Embassy of Romania, U.S. Senate Foreign Relations Committee and the Bureau of European and Eurasian Affairs within the Department of State to discuss Romania adoptions.

October 19, 2004 - Romania agrees to establish international adoptions committee. The international commission will be established for the purpose of reviewing pending cases that were registered with the Romanian Government prior to adoption of the new law.

December 2004 – President Traian Basescu takes office.

January 1, 2005 – The new adoption law is implemented in Romania limiting international adoptions to only biological grandparents. However, U.S. adoption law prohibits relative adoptions in cases of grandparents.

January 2005 - The U.S. Government has identified approximately 211 “pipeline cases” in which Romanian children had been matched with U.S. parents prior to the adoption of the new law. The U.S. families have indicated they still want to continue with the process.

Present – It is not known exactly how many children remain in institutions, foster care placements or are living on the streets. In the spring of 2004, there was an estimated 37,000 Romanian children still living in institutions. To date the pipeline cases have not been processed.

Universal Declaration of Human Rights

Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

Everyone has the right to life, liberty and security of person.

Article 4.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

[1] Nevada KIDS COUNT. “Transition From Care: The Status and Outcomes of Youth Who Have Aged Out of the Child welfare system in Clark County, Nevada.” Issue Brief II. Las Vegas: University of Nevada, 2001.

[4] The May 2003 version differs significantly from the March 2004 version. In addition, two other versions were released (October 2003 and January 2004) which were less restrictive than the March 2004 version.

[5] Under the Emergency Ordinance 384 children were adopted by families in the United States, 230 in Italy, 224 in Spain, 73 in France, 49 in Israel and 44 in Germany among others.